The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND ACTION (Document 15)
On July 13, 2011, Plaintiff Albert Good, an individual dba ALG Enterprises, Coachella Valley Ranches and Castle Rock Vineyards ("Plaintiff") filed this Motion to Remand. The Court deemed the matter suitable for decision without oral argument pursuant to Local Rule 230(g).
Plaintiff filed the instant complaint for injunctive and declaratory relief in Fresno County Superior Court on May 20, 2011. Defendant California Table Grape Commission (the "Commission") removed the action to this Court on June 10, 2011, pursuant to this Court's original jurisdiction. 28 U.S.C. § 1441(b).
On June 17, 2011, Plaintiff filed a First Amended Complaint.
The Commission filed a Motion to Dismiss on June 29, 2011, though the hearing has been vacated pending the outcome of Plaintiff's Motion to Remand.
On July 13, 2011, Plaintiff filed this Motion to Remand. The Commission opposed the motion on July 13, 2011, and Plaintiff filed his reply on August 5, 2011.
ALLEGATIONS IN THE ORIGINAL COMPLAINT
According to the Complaint filed in Fresno County and removed to this Court, Plaintiff is a grower, packer and shipper of table grapes with statewide operation. Plaintiff also employs a substantial sales force to market his own brand of table grapes and is therefore responsible for payment of assessments to the Commission. Pursuant to the Ketchum Act, Cal. Food & Ag. § 65500, et seq., Plaintiff has paid the Commission assessments beginning in the 2001-2002 crop year. The sum includes $1,901,388.93 paid from April 1, 2003, through November 29, 2010, as part of a previous escrow arrangement.
Plaintiff contends that the Commission's advertisements and promotions are largely designed to promote table grapes as though they were a generic commodity with generic quality. Plaintiff markets his own brand, however, to distinguish his product, grade and quality from that of competitors in an effort to secure higher prices and repeat customers. He believes that this mandatory generic advertising is harmful to his message and he "vehemently disagrees" with being associated with the Commission. Plaintiff is opposed to the idea that the Commission, which is compromised of a board of competitors, can chose the message and the messenger using his assessments.
Plaintiff explained that he filed a prior action in this Court, 1:03cv6390 OWW DLB, which was voluntarily dismissed without prejudice in November 2010.*fn1 In January 2011, the parties stipulated that Plaintiff would be entitled to put in escrow assessments accrued for a period of up to two years prior to the date of the new action so long as other conditions were met. The conditions were (1) Shipper/Third-Party litigant voluntarily dismisses a federal complaint and files a new action in California state court within two months; (2) the Commission enters into a voluntary escrow arrangement with the Shipper within three months; and (3) Plaintiff files a California state court action against the Commission reasserting "some or all of the claims" that were voluntarily dismissed within four months. All conditions have been met.
For the First Cause of Action, Plaintiff alleges a violation of the First Amendment and 42 U.S.C. § 1983, contending that the Commission's mandatory assessments force him to financially support speech and his association with the Commission. He contends that the Commission's speech is not government speech and its expressive activities are not state expressive activities.
For the Second Cause of Action, Plaintiff alleges a violation of Article I of the California Constitution, based on the same allegations.
For the Third Cause of Action, Plaintiff alleges a violation of Article I of the California Constitution, based on his argument that the assessments are not a reasonable regulation ...